Law Commission Report: Modernising Wills

The Law Commission for England and Wales has published its report on Modernising Wills, with the purpose of updating the legislation of the Wills Act (1837).

What do you need to know?

The Law Commission has provided several options by which to read the report, including a full report, summary report, and easy read overview. These are well worth reading. Within these documents, the key proposals are as follows:

1. That it should be possible for a court to dispense with the formality requirements in relation to an invalid will – ‘a dispensing power’.
2. That the age at which a person can make a valid Will should be lowered from 18 to 16 years of age.
3. That it should be possible for the Court to authorise a child under 16 to make a Will.
4. That the Court should be able to rectify a Will where it is satisfied that the Will does not give effect to the Testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the Will.
5. That in order to provide better protection to Testators, it is recommended that it should be possible for the Courts to infer that a Will was brought about by undue influence, where there is evidence which provides reasonable grounds to suspect it.
6. That the rule that gifts to a witness to the Will and to their spouse or civil partner are invalid should be extended to apply to gifts to a person who signs the will on behalf of the testator, as well as to their spouse or civil partner.
7. That the Court should have the power to save a gift to a witness or a person who signs on the Testators behalf if the Court considers it just and reasonable to do so, having regard to the conduct of that person relating to executing the Will or proving the Will’s validity.
8. That the rule that marriage or civil partnership revokes a Will should be abolished.
9. The test of test set out in the Mental Capacity Act (2005) should apply to all assessments of Testamentary Capacity.
10. To ensure this is the case, further recommending the MCA code of practice should refer to and explain the elements of Banks vs Goodfellow (1870).
11. That the presumption of capacity applies in the context of making a Will.
12. That there should be a code of practice on Testamentary capacity issued under the Mental Capacity Act (2005) on assessing capacity, and that anyone preparing a Will or assessing capacity in their role as a professional or for payment should be required to have regard to it.
13. That provision should be made for electronic Wills.
14. That electronic Wills should be capable of being valid, in the same way as paper Wills, provided that they meet an additional formality requirement: that a reliant system is used to ensure the security of the Will.

Report on Wills Law

What next?

UK Government gave an initial response to the Law Commission’s report that can be read here. It is now for the Government to review and consider the recommendations for reform.

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